Wills, Undue Influence & Unconscionable Dealing

Lionel Cox, died in August 2015 aged 92-year-old with no close family. He had told neighbours he planned to leave his property to institutions that had looked after him like St Vincent’s Hospital, the Brotherhood of St Laurence’s Coolibah Centre on Brunswick Street or both.

A few months before he died Lionel was admitted to a nursing home, as he was too weak to stay in the house he had lived in for most of his life. In late July 2015 Lionel made a new will making Abha Kumar, the manager of the nursing home the executor and sole beneficiary of his estate. Two other staff members of the nursing home witnessed the Will.

When Lionel died his estate was valued at over $900,000; Abha was the “informant” on his death certificate; she attended Lionel’s funeral. In November she was granted probate.

Following a complaint by Lionel’s neighbours there was an investigation which found that a medical assessment conducted by a geriatrician during Lionel’s stay found that he was

“competent and not suffering any cognitive decline or confusion”.

And there was no evidence that Abha had exerted any influence or pressure over Lionel. According t the investigators report Abha intends to donate the proceeds of the estate to charities named by Lionel in a previous unsigned Will he had prepared by his solicitor.

Some have argued that there must have been some sort of influence for Lionel to have changed his Will however it is difficult to prosecute a case of undue influence or unconscionable conduct in Australia in cases such as this one.

Undue influence arises where the weaker party is influenced into entering into an agreement.  It must be shown that

  • ‘there was such a strong relationship of trust and confidence that the court should be compelled to presume that the transaction was not the result of the free and independent will of the older person; and
  • the transaction was manifestly disadvantageous to the older person’

Was Lionel’s will overborne? Could his ability to understand and make decisions be affected by his dependence on Abha which is in part, the product of his mental deterioration?

Unconscionable dealing occurs where a benefit is gained through deliberate exploitation of a power imbalance or ‘special disadvantage’. Its focus is on the conduct of the more powerful party. If applied successfully, a transaction can be set aside as unconscionable.

An older person’s emotional dependence can be a ‘special disadvantage’.

Some other examples of special disadvantage include ‘poverty or need of any kind, sickness, age, sex, infirmity of body, mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary’.

If it was found that Lionel made his Will as a result of Undue influence, unconscionable dealing, or both the Will is rescinded, restoring the parties to a position as if it never existed.

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